P. v. Collins
P. v. Collins CA3
PUBLISHED
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
face="Courier New">IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
face="Courier New">THIRD APPELLATE DISTRICT
face="Courier New">(Sacramento)
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THE
PEOPLE,
Plaintiff and Respondent,
v.
JAMAR
COLLINS,
Defendant and Appellant.
A jury found defendant Jamar Collins guilty
of multiple counts of robbery, charges arising from his possession of a
handgun, and receiving stolen property. The jury also found firearm enhancements in
connection with the robbery counts to be true.
Defendant admitted a prior strike offense and the court sentenced him to
a total of 31 years in prison.
On appeal, defendant contends his conviction
for possession of a handgun by a felon must be reversed because it was not
supported by substantial evidence. He also contends his conviction for receiving
stolen property must be reversed because it is based on some of the same
property as the robbery convictions.
We agree with the People there was sufficient
evidence to support defendant’s conviction for possession of a handgun by a
felon. We find merit in the second contention,
however, and conclude defendant cannot be convicted of receiving the same
property he was also convicted of stealing.
Accordingly, we will reverse his conviction for
sentence was stayed pursuant to Penal Code section 654) and will otherwise
affirm the judgment.
Two deputy sheriffs on patrol stopped the car
defendant was driving because one of its brake lights was out. During a lawful search of the car, one of the
deputies found a wallet containing identification and bank cards that belonged
to people other than defendant and his passenger. The deputy determined that the cards belonged
to victims of a recent robbery.
During the search, one of the deputies asked
defendant for the ignition key to open the glove box, which was locked. Defendant turned over a set of keys on a key
ring, but none of them were car keys. He
told the deputy the car key might have fallen off the ring, but the deputy
could not find it on defendant or anywhere nearby. The deputy then forced the glove box open and
found a gun inside. The deputies
arrested defendant for possessing that gun.
The deputies needed the car key to tow the
car, and they eventually got it from defendant’s passenger, who had been hiding
it in the waistband of her pants.
Defendant contends his conviction for
possession of a handgun by a felon must be reversed because it was not
supported by substantial evidence. We agree with the People that there was
sufficient evidence to support the conviction.
When a defendant challenges the sufficiency
of the evidence to support a criminal conviction, “‘[t]he test on appeal is
whether substantial evidence supports the conclusion of the trier of fact, not
whether the evidence proves guilt beyond a reasonable doubt. The court must view the entire record in the
light most favorable to the judgment (order) to determine whether it discloses
substantial evidence--that is, evidence which is reasonable, credible, and of
solid value--such that a reasonable trier of fact could find the [defendant]
guilty beyond a reasonable doubt. In
making such a determination we must view the evidence in a light most favorable
to [defendant] and presume in support of the judgment (order) the existence of
every fact the trier could reasonably deduce from the evidence.’†(In re Paul C.
(1990) 221 Cal.App.3d 43, 52, quoting In re Oscar R.
(1984) 161 Cal.App.3d 770, 773.)
“Before the judgment of the trial court can
be set aside for the insufficiency of the evidence, it must clearly appear that
on no hypothesis whatever is there sufficient substantial evidence to support
the verdict of the jury.†(
Defendant contends there was no substantial
evidence he was in either actual or constructive possession of the gun and
that, “[a]t most, the evidence established that [he] was in the car in which a
handgun was found and perhaps that he even knew that it was there.†We disagree.
“A defendant possesses a weapon when it is
under his dominion and control.†(
constructive. Actual possession means
the object is in the defendant’s immediate possession or control. A defendant has actual possession when he
himself has the weapon. Constructive
possession means the object is not in the defendant’s physical possession, but
the defendant knowingly exercises control or the right to control the object.†(In re Daniel G.
(2004) 120 Cal.App.4th 824, 831, citing Peña, at pp.
1083–1084.)
“Dominion and control are essentials of
possession, and they cannot be inferred from mere presence or access. Something more must be shown to support
inferring of these elements. Of course,
the necessary additional circumstances may, in some fact contexts, be rather
slight. [Citations.] It is clear, however, that some additional
fact is essential.†(
Defendant contends “there was no evidence
linking [him] to the handgun other than the fact that it was inside the car in
which he was driving.†He is
mistaken. There was also evidence that
he affirmatively tried to hide the gun from the police. Specifically, the evidence showed that
despite the fact he was driving the car, when the police asked for the ignition
key to unlock the glove box (in which the gun was stashed), defendant did not
have the key. Instead, the key turned up
hidden in the passenger’s waistband.
From these facts, the jury could reasonably infer not only that
defendant was aware of the gun in the glove box, but that when the police
pulled him over he took the key from the ignition and gave it to his passenger
to hide so that the police could not open the glove box and find the gun. This evidence of defendant’s attempt to hide
the gun from the police was sufficient to support a finding that, at the very
least, he had dominion and control over the gun and thus constructively
possessed it.
On this point, People v.
Taylor (1984) 151 Cal.App.3d 432 is instructive. In Taylor, the
defendant took his girlfriend’s father’s car without permission and when
spotted the next day by police fled at high speed. (Id. at p.
434.) “Minutes after the car sped away,
police saw a gun thrown from the passenger window into bushes.†(Ibid.) The defendant was ultimately apprehended
after crashing the car. (
appeal, the defendant “suggest[ed] the evidence he
possessed the gun was insufficient as a matter of law,†but the appellate court
concluded he was “wrong,†explaining as follows: “The trial court was aware the gun was thrown
from the passenger side of the car and Taylor was the driver. The court noted, however, the gun was thrown
soon after the chase began and Taylor’s driving represented an unequivocal
attempt to avoid capture. A conviction
may be supported by circumstantial evidence of constructive possession. The mere fact the evidence supports an
inference Taylor did not personally possess the gun does not require
reversal. [Citation.] There was sufficient evidence Taylor had
constructive possession of the firearm.â€
(Id. at p. 436.)
It is true, as defendant notes, that “there
was no evidence [here defendant] was driving evasively,†but that is a
distinction without a difference. Just
as Taylor’s driving represented “an unequivocal attempt to avoid capture,â€
which (in defendant’s words) “demonstrate[d] that he was conscious of his own
guilt in possessing the gun,†here defendant’s attempt to hide the key to the
glove box from police represented an unequivocal attempt to prevent the police
from finding the gun stashed there, which, too, demonstrated consciousness of
guilt sufficient to support a finding of possession.
Defendant implies there could have been two
separate keys involved here, one that operated the ignition and one that opened
the glove box, because neither deputy “affirmatively stated that the ignition
key and the key that opened the glove compartment were one and the same.†The record, however, reveals no hint there was
more than one key. To the contrary,
although neither deputy directly stated as much, the record clearly shows the
key found on defendant’s passenger fit both the ignition and the glove box. Thus, when defendant gave the key to his
passenger to hide in her waistband, he evidenced knowledge of the gun
sufficient to support a finding of possession.
Indeed, in undertaking an effort to hide the gun from police (by hiding
the key to where the gun was stashed), defendant exercised dominion and control
over the gun and thus constructively possessed it. Accordingly, the evidence was sufficient to
support his conviction.
Property
Defendant contends his conviction for
receiving stolen property must be reversed because it is based on some of the
same property as the robbery convictions.
A defendant may not be convicted of stealing
and of receiving the same property. (
496.) “[I]n the absence of an
instruction on the question, it is the conviction for theft or a theft-related
offense which has the preclusive effect and not vice versa.†(
defendant was convicted of stealing and receiving the same property,
“appropriate remedy then is to reverse only . . . the conviction for receiving
stolen property, and let stand the conviction for robbery which was supported
by substantial evidenceâ€].) Thus, we
shall reverse defendant’s conviction for receiving stolen property, on which
his sentence was stayed pursuant to Penal Code section 654.
Defendant’s conviction of receiving stolen
property is reversed. In all other
respects, the judgment is affirmed. The
trial court shall prepare an amended abstract of judgment reflecting this
disposition and forward a certified copy to the
P. J.
We
concur:
DUARTE , J.
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HOCH , J.
name="_ftn1" title="">face="Courier New">[1] Curiously, the People do
not address this argument.
